Sam v. Balardo, Docket No. 30138

• Decision Date: 07 August 1978
• Docket Number: Docket No. 30138
• Citation: 85 Mich.App. 20,270 N.W.2d 522
• Parties: Willie James SAM, Plaintiff-Appellant, v. Marilynn J. BALARDO, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 522

270 N.W.2d 522

85 Mich.App. 20

Willie James SAM, Plaintiff-Appellant, v. Marilynn J. BALARDO, Defendant-Appellee.

Docket No. 30138.

Court of Appeals of Michigan.

Aug. 7, 1978.

Released for Publication Oct. 20, 1978.

Myron F. Poe, Royal Oak, for plaintiff-appellant.

Marilynn Balardo, in pro per.

Before T. M. BURNS, P. J., and CAVANAGH and RILEY, JJ.

RILEY, Judge.

This matter involves the applicable statute of limitations for an action alleging legal malpractice. Plaintiff appeals from the jury's verdict of no cause of action, arguing that the trial court erred in instructing the jury on a two-year statute of limitations.

The dissent quite comprehensively states the legal rationale in favor of a holding that the two-year limit of M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3), applies both to medical and legal malpractice. In fact we will not try to improve upon the dissent's discussion of the statutory evolution and the accompanying case law, and in particular the reasoning with which the dissent analyzes the Supreme Court's decision in Kambas v. St. Joseph's Mercy Hospital of Detroit, 389 Mich. 249, 205 N.W.2d 431 (1973).

The dissent, however, somewhat abruptly changes direction and concludes, based upon a Committee Comment to the Revised Judicature Act and Judge (now Justice) Levin's dissent in this Court's Kambas ¹ decision, that the two-year statute of limitations applies only to medical malpractice, leaving legal malpractice under the general tort limitation of three years.

We cannot agree with this conclusion for a number of reasons. First, we find it relevant (although Judge Levin would disagree) that the term "malpractice of physicians, surgeons or dentists" in 1915 C.L. 12323(3), was altered in M.C.L. § 600.5805(3); M.S.A. § 27A.5805(3), to read merely "malpractice".

Second, the case law, as pointed out by the dissent, uniformly employs the two-year statute of limitations for legal malpractice.

Third, as Judge Levin pointed out in his Kambas dissent, states such as New York and Ohio, which have laws similar to Michigan's in that the term "malpractice" is used but never specifically defined, include both legal and medical malpractice under their "malpractice" statutes of limitations. Kambas v. St. Joseph's Mercy Hospital of Detroit, 33 Mich.App. 127, 138-139, 189 N.W.2d 879 (1971).

Finally, and most importantly, we do not agree with the dissent that the Committee Comment is an "explicit" statement of legislative intent. The Comment merely states that "(e)xisting time periods have been used". There are two possible interpretations of this phrase. The dissent asserts that the Comment means that every cause of action existing prior to the Revised Judicature Act retains the same applicable statute of limitations subsequent to the new law. We read the Comment to refer solely to the fact that, for example, the "malpractice" statutory period remains at two years. We do not find that the Comment precludes a concurrent finding that the Legislature expanded the set of causes of action that constitute "malpractice".

The result reached by the dissent, while reasonably supported by its reading of the Committee Comment, is inconsistent with plain common sense. To, on one hand, define an action against an attorney for his or her breach of professional standards as malpractice, while, on the other hand, exempt such an action from a statute of limitations expressly applicable to "actions charging malpractice", does little but add confusion, uncertainty, and a sense of absurdity about the law to both the legal community and the general public. This problem is even more apparent now that the Legislature, in response to the Supreme Court's Kambas decision, has amended M.C.L. § 600.5838; M.S.A. § 27A.5838, to allow for "malpractice" actions against nurses, physical therapists, and various other occupations. We find it untenable that legal malpractice, a cause of action long-recognized in Michigan, does not have the same statute of limitations as applied to these recently created malpractice actions.

Affirmed. No costs.

CAVANAGH, Judge, dissenting.

Plaintiff sued defendant for legal malpractice. The jury returned a verdict of no cause of action, and plaintiff appeals, assigning error in the court's instructions.

Plaintiff contends that the court erred by instructing the jury to apply a two-year statute of limitations to plaintiff's claim. Plaintiff asserts that the proper period of limitations is three years. The statutes in question are these:

"Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

"(3) The period of limitations is 2 years for actions charging malpractice.

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property." M.C.L.A. § 600.5805; M.S.A. § 27A.5805.

Defendant argues that the two-year statute "for actions charging malpractice" is clearly appropriate for an action based on legal malpractice.

At least three decisions from this Court have assumed that the limitations period on a claim for legal malpractice is two years. See Biberstine v. Woodworth, 81 Mich.App. 705, 265 N.W.2d 797 (1978); Berry v. Zisman, 70 Mich.App. 376, 378, 245 N.W.2d 758, 759 (1976); Corley v. Logan, 35 Mich.App. 199, 202, 192 N.W.2d 319, 321 (1971). One case may be read as so holding. Basic Food Industries, Inc. v. Travis, Warren, Nayer & Burgoyne, 60 Mich.App. 492, 495, 231 N.W.2d 466, 467 (1975).

The assumption is plausible, in light of the statute's plain wording. ¹ Moreover, construing the statute to hold a meaning more limited than its language would seem to run afoul of the rule that,

"A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity." City of Lansing v. Twp. of Lansing, 356 Mich. 641, 649, 97 N.W.2d 804, 809 (1959). (Citation omitted.)

The legislative history of malpractice actions also lends some support to the conclusion that the two-year limitations period applies.

The common law permitted actions for legal malpractice ² as well as for medical malpractice. ³ The Legislature very early provided that these actions could be initiated by civil arrest on the writ of Capias ad respondendum. ⁴ The statute of limitations on these actions was six years. ⁵

These limitation periods were modified by the Judicature Act of 1915. That act provided a three-year period for "(a)ctions to recover damages for injuries to person or property". C.L. 1915, § 12323(2). A shorter, two-year period was provided for malpractice, but it was limited to the "malpractice of physicians, surgeons or dentists". 1915 C.L. 12323(3).

These provisions remained unchanged until passage of the Revised Judicature Act in 1961. ⁶ That act, quoted at the outset of this opinion, dropped the language limiting the malpractice statute to physicians, surgeons or dentists. The general three-year statute for injuries to persons or property remained unchanged.

The act, and parallel court rule revisions, also rewrote the procedures for initiation of malpractice suits. The writ of Capias ad respondendum was abolished, ⁷ all suits were to be commenced by filing a complaint, ⁸ and summons succeeded Capias As the process to be served on the defendant. ⁹ The statute authorizing use of Capias for initiation of a malpractice suit was repealed with abolition of the writ, leaving the common law as the exclusive source for rights of action for legal and medical malpractice. ¹⁰

Viewing these several revisions as an interrelated whole, it might reasonably be inferred that the abolition of the special procedures for malpractice suits, and the apparent broadening of the medical malpractice statute of limitations, were parts of a general plan for simplification and consolidation of the laws relating to the malpractice of both professions. This interpretation is strengthened by the simultaneous revision of the statute authorizing malpractice actions against charlatans, which was extended to include actions "against any person professing or holding himself out to be a member of a state licensed profession". ¹¹

However, plaintiff contends that this construction is untenable in light of the Supreme Court's decision in Kambas v. St. Joseph's Mercy Hospital of Detroit, 389 Mich. 249, 205 N.W.2d 431 (1973). In Kambas the Supreme Court held that the malpractice statute of limitations did not apply to an action charging negligence of registered nurses in the performance of their duties. The Court followed two related lines of analysis to this conclusion.

The Court first rejected the argument that section 2912 of the Revised Judicature Act ¹² had created a malpractice action against nurses. Noting that nurses could not previously be sued for malpractice, the Court concluded that there was no present authority for such a suit, and hence the malpractice statute of limitations was inapplicable.

The Court's analysis then focused on the malpractice statute of limitations itself. Quoting extensively from a decision by the Ohio Supreme Court which had construed the similar Ohio statute, ¹³ the Court found no indication of legislative intent to alter the common law definition of malpractice, and therefore presumed that the Legislature had intended the statute to protect only those groups traditionally associated with malpractice. The Court found that nurses were not such a group. The Court then stated that a professional such as a physician is required to exercise his independent judgment on such matters as diagnosis and prescription, and that these areas present the greatest risk of unwarranted claims. The Court concluded that this distinction...